Avoiding Discovery Traps

There are numerous traps for the unwary that may prevent even the most well-crafted discovery from ever being enforced.

December 27, 2007

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Discovery requests are only as valuable as the ability to enforce them. Unfortunately, not all the rules relating to the enforcement of discovery requests are as obvious as they could be. As a result, there are numerous traps for the unwary that may prevent even the most well-crafted discovery from ever being enforced.

Setting Deadlines

The California Code of Civil Procedure sets forth strict deadlines for many types of discovery motions. For example, where a party fails to respond to document requests, asserts improper objections and/or fails to produce responsive documents, the propounding party must bring a motion within 45 days from the deadline to respond and/or produce. The failure to do so results in waiver of the right to seek relief. See Code Civ. Proc. section 2031.310(c). The same clear-cut rule also applies to requests for admissions and special interrogatories. See Code Civ. Proc. sections 2033.290(c); 2030.300(c).

Yet not all state and federal discovery motion deadlines are as clearly delineated as this well-known 45-day rule for written discovery between parties in state court. A more ambiguous example was recently illustrated by the Second Appellate District in a case dealing with non-party discovery. See Unzipped Apparel, LLC v. Bader, 2007 Cal. App. LEXIS 1721, No. B193327 (October 17, 2007).

At issue in Unzipped was the time period within which a litigant must bring a motion to enforce a business record subpoena to a non-party under Section 2025.480(b) of the Code of Civil Procedure. Unlike parties, discovery on non-parties can only be obtained by subpoena for attendance at a deposition, for production of business records, or both. See Code Civ. Proc. section 2020.010. Confusingly, however, Section 2025.480(b) provides that a subpoenaing party may bring a motion to compel production of documents "no later than 60 days after the completion of the record of the deposition." Id. [italics].

Reasoning that no actual "deposition" goes forward when a non-party responds to a business records only subpoena, Unzipped moved to compel production of documents more than 60 days after the service of objections. The responding parties objected and argued that the motion was untimely. Noting that "there was no deposition here and therefore [the 60 day] time limit does not apply," the trial court granted Unzipped's motion to compel.

The Court of Appeals reversed, holding that the objections served in response to Unzipped's business records subpoena constituted a "record of a deposition," which was complete as of the date set for the production - when Unzipped received the objections. Because Unzipped waited over 60 days after receiving the objections, its motion to compel was untimely and the right to enforce the subpoena was waived.

The Court found that the Code of Civil Procedure contemplated that discovery conducted by way of a business records subpoena was a "deposition." It noted that a party may obtain information from a nonparty only through a "deposition subpoena," which may be used to conduct an "oral deposition," a "written deposition," or a "deposition for the production of business records and things." See Code Civ. Proc. section 2020.010(a). Further, a business records subpoena also directs the nonparty's custodian of records to deliver the requested documents to the "deposition officer" specified in the subpoena. See Code Civ. Proc. section 2020.430(a).

The Court also relied on the policy that non-parties should not be subject to harsher rules than parties to a lawsuit. See Monarch Healthcare v. Superior Court 78 Cal.App.4th 1282, 1289-1290 (2000) ("[d]iscovery procedures are generally less onerous for strangers to the litigation ... [which] are less likely to be represented by counsel, familiar with the issues, or able to react with alacrity before responses are due."). The distinction between parties and nonparties reflects the notion that, by engaging in litigation, parties should be subject to the full panoply of discovery devices, while nonparty witnesses should have some protection from the burdensome demands of litigation.

In Search of a Rule

While clarifying the correct time period to enforce a business record subpoena, Unzipped fails to provide a clear cut rule for when "record of the deposition" is "completed" for purposes of triggering the 60-day deadline. This is because not all document productions are completed on the date stated in the subpoena. Rather, if the subpoenaing party opts to inspect and copy the original documents at the office of the responding business, "the record of the production could take days to complete." Thus, "Until the entire document inspection is finished, including the raising of any objections during that process, the necessity and scope of a motion to compel may not be known." As such, the trigger for the 60-day deadline is easily subject to manipulation, or at least some degree of control, by the subpoenaing party.

Unzipped ultimately illustrates the importance of paying close attention to the various discovery enforcement deadlines under state and federal law.

For example, in state court there are additional, varying deadlines beyond the 45-day and 60-day rules discussed above. Indeed, the 60-day rule for non-parties does not always control. Section 1985.3(g) provides that a motion to enforce a subpoena for production of a consumer's personal records must be brought within 20 days of service of written objections. A similar deadline exists to move to compel production of employment records. See Code Civ. Proc. section 1985.6(f)(4).

In contrast, there is no deadline to move to compel where a party fails to respond to a request for physical or mental examination, or fails to appear at a deposition without first asserting objections. See Code Civ. Proc. sections 2032.250 (mental examination); 2025.450 (deposition of party).

A further distinction is that, while the 45-day deadline to move to compel parties as to document requests, interrogatories and requests for admissions can be extended by written stipulation, there is no specific provision permitting an extension of the 60-day and 20-day deadlines applicable to subpoenas.

Although failure to meet these deadlines results in the harsh sanction of waiver, not all is lost for a party who fails to bring timely motions. A party can still move for relief under Section 473 of the Code of Civil Procedure based on "mistake, inadvertence, surprise or excusable neglect." Such a motion must be made within a "reasonable time" not to exceed six months. However, "Counsel's mistake of law on a relatively simple and undebatable matter was not a valid ground for relief." See City of Fresno v. Superior Court, 205 Cal.App.3d 1459, 1467 (1989).

Federal Distinctions

Unlike the California Code of Civil Procedure, the Federal Rules of Civil Procedure do not provide explicit time limits to file motions to compel against parties. See, Fed. R. of Civ. Proc. 33, 34, 36 & 37. Nor does Rule 45 provide a time limit within which to bring discovery motions as to non-parties, and instead appears to provide an open-ended period to do so. See Fed. R. of Civ. Proc. 45 ("[i]f an objection has been made, the party serving the subpoena may ... move at any time for an order to compel the production ..." [italics]).

Nevertheless, some federal courts have local rules specifying the time within which a motion to compel discovery must be filed. See N.D. Cal. Local Rule 26-2 ("Where the Court has set a single discovery cut-off for both fact and expert discovery, motions to compel must be filed within 7 court days after discovery cut-off."); D. N.M. Local Rule 7 (party served with objections to interrogatories, requests for production, or requests for admission must file a motion to compel within 20 calendar days of service or production of documents). Notably, there are no such local rules in the Central, Southern or Eastern Districts of California.

Unless a deadline is set by local rules or a scheduling order under Rule 16, a motion to compel need only be brought within a reasonable time. See Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D. Nev. 1999). And, unless prejudice is shown, "a motion to compel filed during the discovery period would rarely be considered untimely."  See also Federal Deposit Insurance Corporation v. Garner 126 F.3d 1138, 1146 (9th Cir. 1997) (allowing enforcement of deposition subpoena notwithstanding 24 month delay given absence of prejudice).

As in state courts, not all is lost for a party who fails to timely bring a motion to compel discovery in federal court. A party who is found in waiver may seek relief under Rule 60 of the Federal Rules of Civil Procedure based on mistake, inadvertence, surprise or excusable neglect. A Rule 60 motion must be made within a "reasonable time" but not more than one year after the judgment, order, or proceeding was entered or taken.

Alternative Devices

Ultimately, even if relief is denied under Section 473 or Rule 60, a party in state or federal court may still be able to obtain the same underlying information through alternative discovery devices. For example, while a litigant who fails to timely move to compel responses to written interrogatories under Code of Civil Procedure Section 2030.300(c) cannot propound the same interrogatories, it could conceivably obtain the same information during a deposition or via requests for admissions or document requests. See Carter v. Superior Court, 218 Cal. App. 3d 994, 997 (1990).

In short, although there are various remedies and strategies to avoid the harsh penalty of waiver, Unzipped confirms that practitioners must make every effort to comply with the dizzying array of discovery deadlines under state and federal law.

The articles on our website include some of the publications and papers authored by our attorneys, both before and after they joined our firm. The content of these articles should not be taken as legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or official position of Robins Kaplan LLP.


David Martinez


Member of the Executive Board;
Member of the Firm's Diversity Committee;
Pro Bono Chair, Los Angeles Office

Sarinya Teng

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